BHARATI RANA Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) Petitioner was working as Senior Medical Officer. She, having had worked for the required period as such Medical Officer, became eligible for being considered for promotion to the post/Grade of Joint Director. Departmental Promotion Committee considered the case of promotion of the petitioner. In terms of the Promotion Rules, the Departmental Promotion Committee was required to consider last ten years' Annual Confidential Reports for the purpose of ascertaining, whether petitioner is eligible for being so promoted. Promotion Rules prescribed that a person, who has received "Satisfactory (Achchha)" remark in any such report would get no marks or "Zero" for that reporting year. While the case of the petitioner was considered, it transpired that petitioner had received "Satisfactory" in three of her Annual Confidential Reports. Departmental Promotion Committee also noticed that one of those Annual Confidential Reports had been written by a person, who was not competent to write the same. Departmental Promotion Committee, accordingly, treated the Annual Confidential Reports for the said reporting year as not available. Departmental Promotion Committee, accordingly, considered the remaining nine Annual Confidential Reports, awarded appropriate marks in relation thereto in accordance with the Rules and while doing so awarded "Zero" mark for two reporting years since in the Annual Confidential Reports for the said reporting years, it had been reported that she had received "Satisfactory" remark, averaged the same for ten years and concluded that the petitioner received less than 60 marks, being the bench-mark for promotion, and held that she is not eligible for being promoted. In the present writ petition, it is being contended that admittedly the Annual Confidential Reports, in which it had been reported that performance of the petitioner was average, had not been furnished to the petitioner, though the same was adverse. It was contended that in such circumstances, Departmental Promotion Committee could not look into the same. It is the contention of the State Government that Departmental Promotion Committee was bound to consider ten years' Annual Confidential Reports and they, accordingly, considered all those ten Annual Confidential Reports, and as entitled to, did not take note of one Confidential Report, which was written by a person not competent, and therefore, they have discharged their duties. It was also submitted that remark of "Satisfactory" cannot be treated as adverse.

(2.) We are of the view, in view of the judgment of the Supreme Court rendered in the case of Dev Dutt Vs. Union of India and others (2008) 8 SCC 725, that when a Government Officer having had worked for a whole year earns no marks, for he has been accorded "Satisfactory" remark, for his performance during the year, for his future progress, the same is nothing but adverse requiring him to be told accordingly so as to enable him to improve in future. In the event such adverse remarks are not communicated, but the same are considered for the purpose of considering future prospect of the Government employee, the same would be doing things, which are not permissible in law.

(3.) According to our calculation, it appears that if seven years' performance had been looked at ignoring the one, which had been written by a person not competent and the other two containing adverse remarks of "Satisfactory" not communicated to the petitioner, she would have scored 61.440 marks and in turn, would have crossed the eligibility yardstick for being promoted, but we feel that this exercise must be done by the Departmental Promotion Committee. We, accordingly, allow the writ petition, quash the decision not to select the petitioner and direct the Departmental Promotion Committee to consider the Confidential Reports of the petitioner for ten years, which the Departmental Promotion Committee had considered, but not to take into account the Confidential Remarks of the year, which had been reported by an incompetent person as well as the Confidential Reports of two years, whereby petitioner had secured "Satisfactory" as the final assessment of her performance during the relevant years and which had not been communicated to the petitioner. The marks obtained by the petitioner on the basis of remarks given in the remaining seven years should thereupon be transformed into ten years' performance on the basis of average of each year and if the petitioner has, thus, obtained marks in excess of 60, deal with the petitioner in accordance with the mandate of the Rules. Let the above exercise be completed as quickly as possible, but not later than three months from the date of production of a certified copy of this order upon respondent no. 1.